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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Hoak Media of Colorado, LLC ) File Number: EB-07-DV-028
Antenna Structure Registrant ) NAL/Acct. No.: 200732800001
ASR # 1034539 ) FRN: 0014363147
Grand Junction, Colorado )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 23, 2007
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Hoak Media of Colorado, LLC ("Hoak Media"), registered owner of
antenna structure # 1034539, in Grand Junction, Colorado, apparently
repeatedly violated Section 17.57 of the Commission's Rules ("Rules")
by failing to immediately notify the Commission of a change in
ownership information for antenna structure # 1034539. We conclude,
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("Act"), that Hoak Media is apparently liable for a forfeiture
in the amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On January 5, 2007, agents of the Enforcement Bureau's Denver Office
conducted an inspection of antenna structure # 1034539. KREX-TV,
serving Grand Junction, Colorado, broadcasts from antenna structure #
1034539 and is currently licensed to Hoak Media.
3. On January 10, 2007, a search of the Commission's Antenna Structure
Registration ("ASR") database revealed that antenna structure #
1034539 was registered to Withers Broadcasting Company ("Withers").
The principal of that company, W. Russell Withers, Jr., is the former
licensee of KREX-TV.
4. On February 7, 2007, a Denver agent contacted Hoak Media's chief
engineer. The chief engineer stated that he assumed that Hoak Media
had acquired antenna structure # 1034539 when it acquired KREX-TV.
5. On February 8, 2007, Hoak Media filed an application to update the
ownership information on the ASR for antenna structure # 1034539. On
February 9, 2007, the application was granted and the ASR for antenna
structure # 1034539 showed Hoak Media as the registrant of the antenna
structure.
6. On February 27, 2007, a Denver agent asked counsel for Hoak Media when
Hoak Media acquired antenna structure # 1034539. Counsel for Hoak
Media informed the agent that Hoak Media became the owner of the
antenna structure in 2003 when it acquired the KREX-TV license from W.
Russell Withers, Jr. According to Commission records, the consummation
of the assignment of the KREX-TV license from Withers to Hoak Media
occurred on November 12, 2003.
III. DISCUSSION
7. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
8. Section 17.57 of the Rules requires the owner of an antenna structure
to immediately notify the Commission, using FCC Form 854, upon any
change in structure height or change in ownership information. We
require antenna structure owners to maintain current antenna structure
registration information with the Commission and post ASR numbers at
the base of antenna structures to allow for easy contact if problems
arise. According to Commission records and statements by Hoak Media's
counsel, Hoak Media acquired antenna structure # 1034539 on November
12, 2003. After an inspection of the structure, a January 10, 2007,
review of the Commission's ASR database showed Withers, the antenna
structure's previous owner, as the registrant of the structure.
9. On February 9, 2007, Hoak Media's application to update the ownership
information in the Commission's ASR database, filed on February 8,
2007, was granted.
10. From November 12, 2003, until February 8, 2007, Hoak Media failed to
notify the Commission that it had acquired antenna structure #
1034539. This violation occurred for more than one day, therefore, it
is repeated. Based on the evidence before us, we find that Hoak Media
apparently repeatedly violated Section 17.57 of the Rules by failing
to immediately notify the Commission about a change in ownership for
antenna structure # 1034539 in Grand Junction, Colorado.
11. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for failure to file required forms or
information is $3,000. In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require.
Applying the Forfeiture Policy Statement, Section 1.80, and the
statutory factors to the instant case, we conclude that Hoak Media is
apparently liable for a ($3,000) forfeiture. We note that Hoak Media
notified the Commission of its ownership of antenna structure #
1034539 after being contacted by Denver agents. The Commission has
stated in the past that an antenna structure registrant is expected to
correct errors when they are brought to the registrant's attention and
that such correction is not grounds for a downward adjustment in the
forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Hoak Media of Colorado, LLC,
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of three thousand dollars ($3,000) for violations of Section
17.57 of the Rules.
13. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Hoak Media of Colorado,
LLC SHALL PAY the full amount of the proposed forfeiture or SHALL FILE
a written statement seeking reduction or cancellation of the proposed
forfeiture.
14. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA
15251-8340. Payment by overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.
15. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226 and must include
the NAL/Acct. No. referenced in the caption.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
17. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Associate Managing Director - Financial Operations, Room 1A625, 445
12th Street, S.W., Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Hoak Media of Colorado, LLC, at its
address of record.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S 17.57.
47 U.S.C. S 503(b).
Antenna structure # 1034539 is required to have painting and lighting in
accordance with chapters 3, 4, 5 and 13 of Federal Aviation Administration
Circular Number 70/7460-1J.
See File No. BALCT-20030819ACQ, granted October 10, 2003.
See File No. BRCT-20051201BKL, ("Hoak Media 2005 Renewal Application"),
Exhibit 6.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'repeated', when used with reference to the
commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S 17.57.
See, e.g., American Tower Corporation, 16 FCC Rcd 1282 (2001) ) (Notice of
Apparent Liability); American Tower Corporation, 16 FCC Rcd 14937 (2001)
(Consent Decree between the Commission and American Tower Corporation ).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(E).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80, 17.57.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
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Federal Communications Commission
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Federal Communications Commission